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Or. VI, rule 17 C.P.C. - amendment petition asking to add some other items in plaint at the stage of arguments - suit for return of gold and silver ornaments and the amount given towards household articles etc., - No grounds to allow the amendment petition - she can get remedy by way of D.V.C. etc or under Or. 2 rule 2(3) by taking permission from the court to take separate claim later ., - High court dismissed the CRP = Veluri Raja Rajeswari ...Petitioner Veluri Santhansagar Reddy and another ...Respondents = published in judis.nic.in/judis_andhra/filename=10623

Or. VI, rule 17 C.P.C. - amendment petition asking to add some other items in plaint at the stage of arguments - suit for return of gold and silver ornaments and the amount given towards household articles etc., - No grounds to allow the amendment petition - she can get remedy by way of D.V.C. etc or under Or. 2 rule 2(3) by taking permission from the court to take separate claim later ., - High court dismissed the CRP =When the case was posted for arguments, the petitioner herein filed IA No.815 of 2009 in FCOP No.340 of 2008 seeking toamend the prayer column to claim a further sum of Rs.80,000/- towards silverarticles, Rs.5,00,000/- towards dowry amount and Rs.5,00,000/- towardscompensation and damages for the mental torture and emotional distress onaccount of marital disturbance due to illegal acts of the respondents. Thelower Court dismissed the said petition holding that the claim is barred bylimitation under Article 113 of the Limitation Act. Challenging the said orderthis revision has been filed. = It is also her submission that since theproceedings are pending in the Court Section 113 of the Limitation Act has noapplication. =As seen from the averments of the plaint, it is clear that the petitioner hasreferred about the present claims in her plaint averments, however the factremains that she did not specifically claim those items in the prayer column.=Sub-rule (3) of Rule 2 of Order IImakes it clear that with the leave of the Court the party may sue for the reliefomitted earlier.Having regard to the facts and circumstances of the case itappears that the petitioner may avail whatever remedies available to her underOrder II Rule 2 sub-rule (3) of CPC or by initiating separate proceedings underDVC, but as far as present suit is concerned, the trial is already over and thesuit is posted for arguments. Order VI Rule 17 CPC is as follows."17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on suchterms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between theparties:Provided that no application for amendment shall be allowed after the trial hascommenced, unless the Court comes to the conclusion that in spite of duediligence, the party could not have raised the matter before the commencement oftrial."Thus, the proviso to Rule 17 makes it clear that no application for amendmentshall be allowed after the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could not have raised thematter before the commencement of trial. In this case by stretch of noimagination it can be said that the petitioner in spite of due diligence couldnot have raised the matter before the commencement of trial. The amendment now sought by the petitioner is within her knowledge. Even as seen from theaverments made in the plaint itself it appears that the petitioner has alsolodged a complaint under Section 498-A IPC. The petition filed by the petitioner cannot beentertained at this stage. If the petition filed by the petitioner is allowedconsequently retrial has to be conducted and all the witnesses have to berecalled and they have to be further cross-examined. That course is not openunless the party proves that her claim comes within the proviso to Rule 17 ofOrder VI CPC. Subject to the observations made supra, the CRP is dismissed.

THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR

CRP No.4934 of 2010

12-11-2013

Veluri Raja Rajeswari ...Petitioner

Veluri Santhansagar Reddy and another ...Respondents

Counsel for the Petitioner: Smt. M. Vidyavathi

Counsel for the Respondents:Sri M. Venkata Narayana

<Gist:

>Head Note:

?Cases Referred:

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

C.R.P. No. 4934 of 2010

Order:

This CRP is directed against the order dated 09.02.2010 passed in IA No.815 of
2009 in FCOP No.340 of 2008 by the Judge, Family Court, Nellore, SPSS Nellore
District.
The brief facts of the case are as follows. The petitioner herein is the wifeof the first respondent herein. The second respondent is the mother of thefirst respondent. The petitioner initially filed a suit for return of gold andsilver ornaments and the amount given towards household articles etc., amountingto Rs.8,02,500/-. Subsequently, the said suit was converted as FCOP No.340 of2008. It appears that after the respondents filed counter, issues were framedand both sides evidence was closed. When the case was posted for arguments, the petitioner herein filed IA No.815 of 2009 in FCOP No.340 of 2008 seeking toamend the prayer column to claim a further sum of Rs.80,000/- towards silverarticles, Rs.5,00,000/- towards dowry amount and Rs.5,00,000/- towardscompensation and damages for the mental torture and emotional distress onaccount of marital disturbance due to illegal acts of the respondents. Thelower Court dismissed the said petition holding that the claim is barred bylimitation under Article 113 of the Limitation Act. Challenging the said orderthis revision has been filed.
Smt M. Vidyavathi, learned counsel for the petitioner, submits that the
petitioner has referred all her claims in her plaint averments and the amendment
now sought is not a new case. It is also her submission that since theproceedings are pending in the Court Section 113 of the Limitation Act has noapplication.
On the other hand, Sri M. Venkata Narayana, learned counsel for the respondents
submitted that no amendment can be allowed after the trial has commenced and in
this case trial has not only commenced but the trial is over and the case was
posted for arguments. It is also his submission that there is nothing on record
to say that the petitioner in spite of due diligence could not have raised the
matter before the commencement of trial.As seen from the averments of the plaint, it is clear that the petitioner hasreferred about the present claims in her plaint averments, however the factremains that she did not specifically claim those items in the prayer column.Order VI Rule 17 CPC is as follows."17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on suchterms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between theparties:Provided that no application for amendment shall be allowed after the trial hascommenced, unless the Court comes to the conclusion that in spite of duediligence, the party could not have raised the matter before the commencement oftrial."

Thus, the proviso to Rule 17 makes it clear that no application for amendmentshall be allowed after the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could not have raised thematter before the commencement of trial. In this case by stretch of noimagination it can be said that the petitioner in spite of due diligence couldnot have raised the matter before the commencement of trial. The amendment now sought by the petitioner is within her knowledge. Even as seen from theaverments made in the plaint itself it appears that the petitioner has alsolodged a complaint under Section 498-A IPC. Sub-rule (3) of Rule 2 of Order IImakes it clear that with the leave of the Court the party may sue for the reliefomitted earlier.Having regard to the facts and circumstances of the case itappears that the petitioner may avail whatever remedies available to her underOrder II Rule 2 sub-rule (3) of CPC or by initiating separate proceedings underDVC, but as far as present suit is concerned, the trial is already over and thesuit is posted for arguments. The petition filed by the petitioner cannot beentertained at this stage. If the petition filed by the petitioner is allowedconsequently retrial has to be conducted and all the witnesses have to berecalled and they have to be further cross-examined. That course is not openunless the party proves that her claim comes within the proviso to Rule 17 ofOrder VI CPC. Subject to the observations made supra, the CRP is dismissed. No costs.
As a sequel, the miscellaneous petitions, if any, pending in this CRP shall
stand closed.

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =in VadirajNaggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: "17. It is now well settled that the power to recall any witness underOrder 18 Rule 17 CPC can be exercised by the Court either on its own motion oron an application filed by any of the parties to the suit, but as indicatedhereinabove, such power is to be invoked not to fill up the lacunae in theevidence of the witness which has already been recorded but to clear anyambiguity that may have arisen during the course of his examination. Of course,if the evidence on re-examination of a witness has a bearing on the ultimatedecision of the suit, it is always within the discretion of the Trial Court topermit recall of such a witness for re-examination-in-chief with permis…

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …